Issues

By Dr Syed Zafar Mahmood,
The Milli Gazette Online

Published Online: May 15, 2017

National boundaries do not always remain constant; on account of various factors these keep changing after every few decades or even over a century or so. This ground reality supports the hypothesis that if ever there is a clash between national interest and human interest then the latter should prevail. This is the main reason behind the healthy practice among decent world societies of trying to know what decisions have been taken abroad on an issue before these are picked up for domestic adjudication.

Trans-judicial communication

In India even at the time of framing the Constitution several world statutes were thoroughly scanned to know the best practices abroad and these were incorporated while drafting our own basic code. The well known lawyer Anne Mary Slaughter calls this life enhancing practice as 'trans-judicial communication'. Human rights advocate Rajiv Dhawan has authored well researched articles on the utilization of foreign decisions by the higher judiciary in India.

Commonwealth judicial colloquium

The commonwealth judicial colloqiums held in Bangalore in 1988 and 1998 had emphasized the desirability and utility of the national judiciary taking cue from decisions abroad. In Kharak Singh v UP Government, Bennett v Union of India, Maneka Gandhi v Union of India, Sunil Batra v Delhi Administration, Hussain Ara Khatoon v Bihar Government the Supreme Court has banked upon the judicial decisions taken on the relevant issues in different countries.

Famous cases

In the famous US case Wolf v Colarado Justice Frankfurter opined that no nation should violate the fundamental liberties recognized by the judiciary in various countries while he included in his judgement an entire table of relevant court decisions taken in Canada, England, Scotland, India and Australia.

Thematic categories to seek support from abroad

Justice Breyer vigorously argues in favor of reference to foreign sources of law to provide 'points of comparison' and claimed that this 'camparativist' view would carry the day. For this purpose, he talks of specific thematic categories as (i) guidance for determination of reasonableness, (ii) making sense of an ambiguous phrase, (iii) logical reinforcement of our own judgements and (iv) empirical support for assertions that are made about the likely consequences of legal reforms that are being advocated through court decisions.

Negative message emanating from the Indian State

In the recent past the executive and the judiciary in our country have either tried to interfere in the civil and personal matters of Muslims or at least, because of their pronouncements, a message has gone among the masses that they consider Muslim practices as regressive and extremist and that they're taking the initiative for course correction. In 2017 there has been an enhancement in the intensity and number of such instances. Hence it's important to reflect on this phenomenon.

The opening paras above clarify that when a national level decision is on the anvil how vital it is to know what treatment has the issue received abroad and to utilize that information for framing the opinion in the country unless it is decided to counter argue against the external trends.

57 Muslim countries plus 22 with Muslims as prominent minority

We are also aware that Islam is not confined to India; rather, there are 57 Muslim countries and 22 others where - quite like India - Muslims comprise prominent minority. Adding to them the Muslims spread over rest of the globe their gross number makes up more than one fifth of humanity. And, only ten percent of the global Muslims are in India.

Obviously, before making changes in the civil and personal laws and practices of selectively one tenth of world's Muslim community the Indian State including the judiciary shall have to apprise itself as to what treatment has been given to these issues by their counterparts in 57 Muslim countries and 22 those where Muslims are prominent minority. Then the views of the well known experts of Islamic jurisprudence - in India and abroad - should be obtained. Thereafter the decision should be taken at the national level factoring these rich inputs which need to be discussed in the body of the decision. It does not behove a decent and mature society to take a national decision in respect of a faith and related practices disregarding what the peoples densifying 79 countries have to say as they practice the same faith; also this upheaves democratic values.

India: Home to 90% Hindus and Sikhs, 10% or less others

On the other hand, more than ninety percent of the Hindus live in India, so is the case with the Sikhs. Therefore if there is a nation that has right to interfere in their religious precepts and practices it is India alone. But - conversely - out of the world Muslims, ten percent or less live in India and much lesser Jews and Christians. Therefore the leaders of all the various wings of the State need to seek out abroad the sanctum sanctorum of the amending right of their personal law. My 46 year old friend Pankaj Sharma and his family live in UK for four decades. But the State there has no exclusive right to interfere in his faith and traditions, it didn't ever think of doing so.

Muslim World League and OIC

Since 1962 the holy city of Mecca hosts the headquarters of Muslim World League representing Muslim nations and societies from all over the world. The UNO values it as a consultant body. Regularly working under it is an Islamic Fiqh (jurisprudence) Council that voices the world Muslim community and happily counsels any nation regarding the nuances of Muslim faith and practices.

Likewise, since 1969 the headquarters of Organization of Islamic Cooperation are in Jeddah. With 57 members this is the biggest world body second only to the UNO. Only recently in February 2017 it had declared at its international conference that marriage and family life are the backbone of smooth world order and for this purpose the OIC proposes to coordinate with the world community in order to strengthen these institutions, to enhance respect for women and to nurture the related values. Detailed resolutions were passed on which the OIC Secretariat has been working. Organs of the Indian State should reach out to MWL and OIC and seek their authentic representative views.

Al-Azhar University and King Fahad Complex

Including Cairo's Al-Azhar University and Madinah's King Fahad complex for Quranic publications and education there is no dearth of authentic experts on Islam in the world besides umpteen of them in India whose well documented opinions should form the basis of any move by the judiciary, executive or the legislature in India. I would appeal to the generosity of the hon'ble Courts, the parliament and the government to take suo moto cognizance of these submissions.

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